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What qualifies as an obvious defect in the condition of an alley is not the same as for a sidewalk

California

,

USA

Public Entities May Apply a Lower Degree of Scrutiny When Inspecting Alleys for Defects In Martinez v. City of Beverly Hills, B305826 (Cal. Ct. App. Nov. 10, 2021), the plaintiff appealed the trial court’s order granting the City of Beverly Hills’ summary judgment motion in the plaintiff’s suit against the City for injuries she sustained after tripping and falling on a divot in an alley. The plaintiff argued that the trial court erred in granting summary judgment because there were triable issues of fact as to whether the City had notice of the divot. A Party’s Failure to Produce Evidence Permits, but Does Not Require an Inference that the Evidence is Adverse to that Party The plaintiff argued that the court was required to infer that the City had actual notice of the divot because the City did not produce a declaration from every City employee who may have been in the alley in the past and denied seeing the divot and that this inference created a triable issue of fact so that summary judgment was improper. The Court disagreed and noted that while a party’s failure to produce evidence permits a court to infer that the evidence is adverse to that party, such an inference is not required. Furthermore, such an inference would not be reasonable in this case in light of the testimony from a crew supervisor who stated that crew members would not have noticed the divot because it was too insignificant to patch. Thus, the Court held that the trial court did not err when it determined that there was no issue of triable fact as to if the City had actual notice of the divot. A Different Standard Applies to Determine the Obviousness of Defects in an Alley Versus a Sidewalk The Court explained that a public entity will be charged with constructive notice of a dangerous condition only if: (1) the dangerous condition existed for a sufficient period of time before the plaintiff’s injury; and, (2) the condition was sufficiently obvious that the entity acted negligently in not discovering and repairing it. Whether a defect was sufficiently obvious to impart constructive notice depends on the location, extent, and the use, both intended and known, of the public property in question. The Court found that alleys are not primarily intended for or used by pedestrians and that because the cost of keeping alleys as defect-free as sidewalks are greater and with less benefit, public entities may reasonably elect to apply less scrutiny when inspecting alleys for defects.Thus, different standards apply to sidewalks and alleys in regards to what constitutes an obvious defect. The divot in this case, which was less than two inches in depth and located by a drainage swale, was not an obvious defect sufficient to impart constructive notice on the City. Disposition The judgment of the trial court was affirmed.

April 14, 2022
Martinez v. City of Beverly Hills, B305826 (Cal. Ct. App. Nov. 10, 2021)
California Courts